My turn: Protecting the right to dissent

Posted: Thursday, March 23, 2006

By DOUGLAS MERTZ

The U.S. Court of Appeals recently ruled that the principal of Juneau-Douglas High School violated Joseph Frederick's free speech rights when she punished him for holding a banner just outside school property reading "Bong Hits 4 Jesus." Most people seem to agree that the principal went too far, but a few still have doubts. Why can't a school official discipline a student for a sign that could be taken as advocating drug use? It's a fair question.

The main point in the decision was not about the particular words on the banner. Frederick testified that the words were nonsense, intended to be funny. But the principal thought they conveyed a pro-drug message, contrary to the school's strong policy discouraging student drug use. According to the court, that raises a basic question: Can a public official, which is what a public school principal is under the law, punish a citizen because the citizen expresses a message the official believes is contrary to official policy? Does a citizen who is also a student have the right to express a contrary message, either on school grounds or, as in this case, off school grounds?

The Court of Appeals answered that question with clarity: Students, like the rest of us, have the right to express thoughts contrary to the official opinion of government officials. The First Amendment wouldn't be worth much if it only protected speech with which officials agreed. There are restrictions on student free speech: Students can be punished for speech that presents an immediate threat of substantial disruption of classroom education or that disrupts a school assembly or that is obscene or plainly offensive. The court made clear that speech is not "plainly offensive" simply because it disagrees with official policy. And the school admitted that the banner display did not disrupt the educational process.

Does this ruling tie the school's hands in its anti-drug policy? By no means. The school retains the right to teach against drug use, to employ drug counselors and to punish drug use on campus. The school is right to do so and it should continue. The only restriction is that the school cannot punish a student who says he believes the contrary, unless the student does it in a way that actually disrupts the classroom educational process.

The Court of Appeals used a good example: What if, instead of holding a banner, students had handed out copies of a Supreme Court decision upholding the right to use marijuana in the privacy of a person's home? Could a student be punished for simply handing out a Supreme Court decision? If the First Amendment means anything, it means we cannot be punished for stating our opinions and for dissenting from official policy. Can a student or even a teacher be punished for engaging in a debate on legalization of marijuana, or on the effectiveness of different strategies for dealing with drug problems? We all have the right to debate controversial issues without fear of government punishment. That is the right that was at stake in the Frederick case. It is a right we should all defend, as the Court of Appeals did in its decision.

 Douglas Mertz is a Juneau attorney who represented Joseph Frederick in his litigation against the Juneau School District.